Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

March 25, 2014

“I AM THE SUBJECT OF A MASSACHUSETTS CRIMINAL INVESTIGATION…BUT I DON’T THINK THEY HAVE ANY EVIDENCE AGAINST ME” PART ONE

I am not going to tell you that every crime that is ever committed is discovered and/or punished. Likewise, I will argue forever that not everyone convicted of a crime is truly factually guilty.

However, the way cases are “discovered”, “solved” and brought to trial has to do with evidence. Most people figure that they know what constitutes evidence.

Many of those people are wrong.

Attorney Sam’s Take On What Evidence Is, Can Be And Just A Few Ways It Can Be Tainted

First of all, let’s do away with the most frequent reflection of evidentiary misunderstanding to which I am so often treated.

“There is no physical evidence. They’ve got nothing. It is just her word against mine.”

Even assuming that there is no physical evidence and all that the prosecution has as evidence is its complainant’s word to use against your word (assuming you are able to testify), to say that they have “nothing” shows great naiveté.

What they have is the complainant’s word. That is all the prosecution needs to bring a case against you. One person’s word. Just to add flavor to that reality, remember something else we have discussed in past blogs. That is that whoever wins the jog to the police is generally going to be considered the “victim” and the person that victim accuses will be the “defendant”.

It can, and usually does, happen that quickly. Given that law enforcement makes that determination so early in the “criminal investigation“, the goal of the police becomes the building the (already established) case. Thus, there is a taint to the investigation in such cases from the very start.

“But they will still keep an open mind, right? I meant, the police do want to see Justice done, right?”

The police generally want to see “Justice” done, yes. However, the problem is that they generally decide what that means in a particular case very early on. The truth, then, is not what you mean by “open mind”. In their minds, they have the truth. Now it is time to build the case against you.

“But the officer told me that he is keeping an open mind, can tell I am a good guy and he just wants to get my side of the story so that he can close the file.”

Yes, that is what they usually will tell you. It is a great approach to get you to talk to them when you do not have to. It may even get you to lower your guard so that you will answer questions in a sloppy manner so that your statements can seem like a confession.

We have discussed many times that, under the law, police officers are allowed to lie during the course of their investigations. The only problem comes if you lie to them. That is called the felony of witness intimidation, believe it or not.

Now, in this scenario, the officers have spoken to, and taken the word of, the complainant who got to them first. They have decided that, based upon the word of the complainant, there is a case to be made and prosecuted against you. That is the situation as you open the door to law enforcement in the beginning stages of the “investigation”.

As the police believe the complainant, and the prosecutor takes the word of the police, by the time the charges come down the system’s legal gun barrel, regardless of whatever else has been found, there is a bona fide case against you.

“And they can win a case on that?”

Often they can. Sometimes they can’t. That will not be found out until the jury returns…somewhere between six months and a year later. But it’s too late to take back mistakes you made earlier on because you believed the “search for the truth” myth.

“Okay, but what about cases where nobody is claiming to be a witness to a crime? For example, what about a white collar crime where I am suspected of doing something wrong even though nobody knows for sure?”

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.